Con Law - Federal System - Relationship with the States Flashcards
How does the Constitution affect States’ Power? (Supremacy - three rules)
(1) The Constitution operates on states, not as a source of power, but a limit on what states can do.
(2) Expressly forbids certain acts (i.e. coining money).
(3) Prohibits states from exercising powers which is inherently federal (i.e. foreign relations). States have no power to deal with immigration, establish requirements for federal citizenship, declare war, or conduct foreign policy.
When does federal law preempt state law?
Federal law (including regulations/treaties) preempts or prevails over any inconsistent state law. [Even if federal law is dumb]
Difference between express vs. implied preemption?
Express - Congress says that federal law displaces or ousts state law in the area.
Implied - Impossible to comply with both state and federal law or whether Congress has adopted extensive regulation that it meant to “occupy the field” and leave no room for state regulation.
Can the States sue, regulate, or directly tax the federal gov’t?
No, not without consent.
What is the privileges and immunities clause of art iv?
Rule: States may not discriminate against out of state citizens (not corporations or aliens) with respect to commercial activities or enjoyment of civil liberties.
States may however require in-state residency for their own employees, may charge out-of-staters more for certain license/services, and may prefer their own citizens in giving state benefits.
What is the Negative or Dormant Commerce Clause?
Where Congress has not acted, state law may still be invalid if it discriminates against or unreasonably burdens interstate commerce.
When does state law discriminate against interstate commerce and thus violates the dormant CC?
(1) Laws that discriminate for the purpose of favoring in-state commerce. These laws are always per-se invalid.
Exception: Favor a government entity performing traditional activities (trash collection) while treating all private companies equally unfavorably, does not violate the constitution.
(2) Laws that discriminate for the purpose of promoting healthy or safety. These types of laws are invalid, unless the state shows that it had no reasonable, non-discriminate means to achieve its police power objective.
When does state law unreasonably burden interstate commerce?
Even if state law is non-discriminatory if fails the following balancing test then it unreasonably burden interstate commerce.
Actual effect of the law on the free flow of commerce against state’s interests served by the law.
Marginal benefits vs. material obstruction of interstate commerce will be invalid.
When does the negative commerce clause either not apply or its modified?
(1) Congressional approval - Congress gives permission for state to take the action.
(2) Market Participant Doctrine and Gov’t Subsidies
Market participant doctrine - whenever a state is acting, not as a regulator, but as a buyer or seller, the negative cc does not apply and the state may discriminate/burden.
A state does not violate the negative cc if it prefers its own citizens or companies with subsidies.
(3) 21st Amendment - gives states power to regulate, possession, sale and transportation of liquors within its own borders. [Broad power to burden liquor] Can’t discriminate against out of state liquor.
Three steps analysis for analyzing dormant commerce clause questions.
(1) Does federal law preempt?
(2) If no, does the law discriminate against interstate commerce?
If yes, its invalid unless state is pursuing legitimate health and safety objectives and has no alternative means OR unless granting subsidies/acting as market participant.
(3) If the state law is non-discriminatory, does it unreasonably burden interstate commerce? Impose a disproportionately heavy cost on interstate commerce.
What are the three requirements for a state tax on interstate commerce to be valid?
(1) Must be non-discriminatory
(2) Activity, person, or thing taxed must have a substantial nexus or connection to the state. Must be an actual presence in the state. [No tax on goods passing through]
(3) Tax may not be unreasonably burdensome in particular, it must be proportioned to the company’s business done in the state or benefits received in the state.
